People v. Malotte

• Decision Date: 27 January 1956
• Docket Number: Cr. 5761
• Citation: 292 P.2d 517,46 Cal.2d 59
• Court: California Supreme Court
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Mabel MALOTTE, Defendant and Appellant.

Page 517

292 P.2d 517

46 Cal.2d 59

The PEOPLE of the State of California, Plaintiff and Respondent, v. Mabel MALOTTE, Defendant and Appellant.

Cr. 5761.

Supreme Court of California, In Bank.

Jan. 27, 1956.

Rehearing Denied Feb. 21, 1956.

Leslie C. Gillen and John R. Golden, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Chief Asst. Atty. Gen., and Raymond M. Momboisse, Deputy Atty. Gen., for respondent.

TRAYNOR, Justice.

Mabel Malotte appeals from a judgment of conviction entered on a jury verdict finding her guilty of conspiring to commit a misdemeanor, Penal Code, § 182, and of contributing to the delinquency of a minor, Welfare & Institutions Code, § 702. She also appeals from the order denying her motion for a new trial.

On March 10, 1954, Frank Lombardi, at the request of the police, made a telephone call from the District Attorney's office in San Francisco. He identified himself and said, 'Say, listen, Mabel; a friend of mine will be in town tonight, and he will call you. His name is Leonard Windsor. Can you take care of him?' This telephone call was not recorded and the officers present were unable to hear the party at the other end of the line.

At about eight o'clock that night Inspectors O'Haire and McGuire of the San Francisco Police Department went to room 712 at the Sir Francis Drake Hotel, where they had previously registered. They placed a recording apparatus under one of the beds and connected it to an induction coil, a device designed to overhear a telephone conversation without the necessity of making physical connection with the telephone electrical circuit. Inspector O'Haire then placed a call to Prospect 6-3267, and defendant answered. Their conversation was as follows:

'Hello.

'Is this Mrs. Malotte?

'Yes.

'Uh this is uh Leonard Windsor.

'Yes.

'Uh Mr. Frank Lombardi told me to get in touch with you this evening.

'Yes; he told me.

'He did?

'Yes.

'Well, I'm staying up at uh Sir Francis Drake, room 712.

'All right.

'And uh I have my friend, Mr. Bacci.

'Uh no, he didn't. But I'll I'll take care of it. What's the name, did you say?

'Bacci.

'All right. I'll uh what time do you want them, right now?

'Well, not right at the moment. In about an hour, half an hour, an hour.

'That'll be fine. All right, I'll take care of it.

'Yes, what time shall we expect them, in half an hour, an hour?

'In about an hour will be fine.

'An hour?

'Yes.

'All right.

'Okay.

'All right.

'Bye.'

About an hour after the telephone call Yola Boles, a minor, came to the hotel room and introduced herself as Adele. The second girl failed to appear, and Yola gave the officers another telephone number, which they called to ask about the delay. Defendant also answered this call and told them that the other girl would be along in a few minutes.

In the meantime, Mary Madsen, the other girl, thinking she saw a plainclothesman following her, called defendant for instructions. Defendant called the hotel room and asked to speak to 'Adele,' but was told that she was occupied. Mary again called defendant, as she had been instructed to do on her previous call, and was told that there was nothing wrong and to go on up. Mary, however, refused to enter the hotel unescorted. Defendant told her to call the room and have the customer come down to meet her. Mary called the room, asked O'Haire to come down, and asked him to call defendant. O'Haire made the call and was told by defendant, 'Well, I have the girl on the other phone now and she will meet you across the street in the Owl Drug Store.' None of these subsequent calls were recorded, nor were they overheard by anyone except the parties thereto.

Inspector O'Haire met Mary at the Owl Drug Store and returned with her to the room. The girls were paid twenty-five dollars each. They disrobed and got into the beds. The officers took badges from their luggage, identified themselves as officers, and placed the girls under arrest. They then went to defendant's apartment and waited outside overnight until a warrant could be secured for her arrest. When they secured the warrant, they demanded admittance, explained their purpose, and forced the door when she refused to answer. (See, Penal Code, § 844.) They found her hiding in the attic.

Defendant contends that the evidence of the recorded phone call was inadmissible on the ground that it was obtained in violation of her constitutional rights and in violation of federal and California statutes. She maintains that without the interpretation the recorded call gives to the subsequent transactions no conspiracy is established, leaving inadmissible the extrajudicial acts and declarations of the girls, alleged co-conspirators, and uncorroborated Mary's testimony, concerning her agreement with defendant to serve as a prostitute for her.

The Attorney General, relying on Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944, and Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322, contends that the overhearing of the telephone conversation by means of the induction coil was not a search and seizure within the meaning of the Fourth Amendment to the Constitution of the United States and Article I, section 19, of the California Constitution. It is unnecessary to determine whether those cases have been unsettled by Irvine v. People of State of California, 347 U.S. 128, 74 S.Ct. 381, 98 L.Ed. 561, for there is a basic difference between the conduct of the officers in that case and the conduct of Inspectors O'Haire and McGuire, herein. In the Irvine case there were several trespasses when the microphone was installed and subsequently moved in the Irvine home, and an 'incredible' invasion of the right to privacy through the eavesdropping over the microphone. The officers monitored indiscriminately not only the conversations pertaining to gambling, but those involving every phase of the Irvines' personal affairs. The technique used by the officers made selectivity impossible. In the present case there was neither trespass nor indiscriminate eavesdropping. Unlike the Irvine case, nothing was overheard but the free discussion of a crime by one who thought her listener a client. When a person discusses the commission of a crime with another, face to face or at a distance through the use of any means of communication, there is no unreasonable invasion of privacy when the other uses the conversation against him.

Defendant contends, however, that the evidence was obtained in violation of the Federal Communications Act, 47 U.S.C.A. § 605, and section 640 of the California Penal Code and that it was, therefore, inadmissible under the rule of People v. Cahan, 44 Cal.2d 434, 282 P.2d 905.

Section 605 of the Federal Communications Act provides: '* * * no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person; * * *.' A majority of the federal courts define 'intercept' as used in section 605 to mean 'to take or seize by the way, or before arrival at the destined place,' and hold that there is no interception when the intended receiver consents to or directs the overhearing of the communication at the moment it reaches him. United States v. Yee Ping Jong, D.C., 26 F.Supp. 69, 70; United States v. Lewis, D.C., 87 F.Supp. 970, 973, reversed on other grounds sub nom. Billeci v. United States, 87 U.S.App.D.C. 274, 184 F.2d 394, 24 A.L.R.2d 881; United States v. Sullivan, D.C., 116 F.Supp. 480, 482; United States v. Pierce, D.C., 124 F.Supp. 264, 267; and see, dissent of Clark, J. to Polakoff v. United States, 2 Cir., 112 F.2d 888, 891, 134 A.L.R. 607; cf. Polakoff v. United States, supra, 112 F.2d 888, 889, 134 A.L.R. 607; United States v. Stephenson, D.C., 121 F.Supp. 274, 277. The United States Supreme Court, approving this definition in the Goldman case, supra, 316 U.S. 129, 134, 62 S.Ct. 993, 995, 86 L.Ed. 1322, went on to say: '(Intercept) does not ordinarily connote the obtaining of what is to sent before, or at the moment, it leaves the possession of the proposed sender, or after, or at the moment, it comes into the possession of the intended receiver.' See, Reitmeister v. Reitmeister, 2 Cir., 162 F.2d 691. Thus, as in the present case, where the conversation was recorded by the officers 'at the moment' it reached the 'intended receiver,' there was no interception within the meaning of section 605 of the Federal Communications Act. There was likewise no invasion of privacy in violation of section 640 of the Penal Code. ¹ There is no learning of the contents of a communication 'fraudulently, or clandestinely, or in any unauthorized manner' when one of the participants to the conversation consents to or directs its overhearing or preservation. See, People v. Channell, 107 Cal.App.2d 192, 200, 236 P.2d 654.

Defendant complains that the trial court erred in refusing to instruct the jury on the defense of entrapment. A substantial part of the conversation between Frank Lombardi and defendant, and all of that between Inspector O'Haire and defendant is quoted above. Neither conversation, nor any testimony brought out at the trial by defendant or the People shows more than the creation of an opportunity for defendant to act on her pre-exising criminal intent. 'Where an accused has a pre-existing criminal intent, the fact that when solicited by a decoy he committed a crime raises no inference of unlawful entrapment.' People v. Schwartz, 109 Cal.App.2d 450, 455, 240 P.2d 1024, 1027, quoted with approval in People v. Braddock, 41 Cal.2d 794, 802, 264 P.2d 521. Thus, as in this case, where there is a complete absence of any evidence of unlawful entrapment, no instruction on the subject need be given. People v. Alamillo, 113 Cal.App.2d 617, 621, 248 P.2d 421; People v. Jackson, 106 Cal.App.2d 114, 125, 234 P.2d 766; People v. Harris, 80 Cal.App. 328, 331,...